Judge Gertner decries increase in summary judgments at 28th Annual Labor & Employment Law Conference

Issue June 2007 By Kate O'Toole

Held in a majestic ballroom at the Park Plaza Hotel in downtown Boston, the 28th Annual Labor & Employment Law Spring Conference attracted more than 180 labor and employment law attorneys from across the state and covered a range of current issues in the field.

 In the first session of the day, attorneys from both sides of the aisle discussed the status of the functus officio doctrine in the arbitration process, as well as what to expect from the courts when appealing an arbitration award.

 The second panel focused on the recent hot topic of immigration. Panelists discussed the rights of undocumented workers and the obligations of employers in regards to the immigration status of their employees. The attorneys especially focused on the ways in which the Supreme Court attempted to reconcile conflicts between two federal policies - the National Labor Relations Act and the Immigration Reform and Control Act - in the 2002 case Hoffman Plastic Compounds Inc. v. NLRB.

 After the conference's customary afternoon program "Survey of Employment Law Developments," the day wrapped up with a session on tips, tricks and pitfalls of electronic discovery. Two of the attorney panelists, who had previously gone head-to-head in a complex e-discovery case, emphasized the vast differences between e-discovery and paper discovery, and instructed attendees how to best benefit from e-discovery. The panel was supplemented by technical commentary from a computer forensics expert.

 Labor & Employment Law Section Chair Rosemary Pye was excited about the content of the conference and the participation of MBA attorneys. "I want to congratulate all the organizers and speakers for their thoughtful, practical presentations and excellent written materials," said Pye. "They went right to the heart of what practitioners need to know to be effective for their clients."

 Gertner delivers engaging keynote address After a buffet lunch, Boston attorney Ellen Messing introduced the keynote speaker, the Hon. Nancy Gertner of the U.S. District Court for the District of Massachusetts.

 Messing described Gertner - who has been a criminal defense attorney, a civil rights activist, a leading advocate for women's rights, a law professor and a teacher of judges from the former Soviet Union - as a woman whose "willingness to challenge conventional wisdom" makes her career one that "defies categorization."

 Gertner concentrated her speech on what she views as a troubling rise in summary judgments in employment law cases, and also spoke about discrimination in general. She noted that a summary judgment used to be considered a "last resort," but is now "the procedure of choice in areas of law where it should be just the opposite."

 She described employment discrimination law as being "reduced to a series of tests" and recalled former federal Judge Patricia Wald's 1998 assessment of summary judgments as a "potential juggernaut, which, if not carefully monitored, could threaten the relatively small residue of civil trials that remain."

 Her remarks were interrupted several times by applause, and she wrapped up her speech by urging the audience not only to examine the role and impact of summary judgment in discrimination cases, but to consider the continued presence of discrimination in our workplaces and our culture as a whole.

 Gertner referred to the Equality Commission's recent study about women's struggles in making partner at law firms. The Equality Commission's report begins by noting that "women and men have been graduating from law schools and entering the firms in virtually equal numbers for at least 15 years," but according to the MIT survey, women make up only 17 percent of firm partners.

 "We need to step back as a society and look at this institutionally," Gertner said. She suggested that women's challenges to climb the ladder in the private sector are mirrored in the public sector and concluded her speech with a comment about the low numbers of women and minorities who are appointed to both state and federal benches: "In 10 years, there will not be women, there will not be minorities, and we will all suffer."